The Test of Establishing the Breach of a Duty of Care in Negligence - Essay Example

 Foundation of Law - Duty of Care in Negligence The Test of Establishing the Breach of a Duty of Care in Negligence Introduction Harpwood (2009) defines negligence as the breach of a legal duty of care owed to one person by another and that results in damage caused to that person. The plaintiff must demonstrate that the defendant owed a duty of care, the defendant breached the duty of care and that personal injury or other damage was suffered due to the breach of the duty of care (Harpwood2009). Negligence claim was first established in the case of Donoghue v Stevenson (1932) AC 562 that requires the claimant to prove that the defendant owed them a duty of care and the defendant actually breached the duty of care thus leading to damages that are not remote. This is referred as the neighbors principle and Lord Atkin asserted that one ‘must take reasonable care to avoid acts or omissions that he or she foresee would likely injure his or neighbor’ (Bermingham & Brennan 2012). According to Lord Atkin, offered neighbors as persons who are closely or directly affected by my act that one ought to have contemplated so when directing his mind to the acts or omissions in question thus meaning duty of care is owed to people who are closely affected by the actions of the defendant. The neighbors principle was affirmed in Anns test in the case of Anns v. Merton London Borough Council (1878) that concluded that test of duty of care is the sufficient relationship of closeness that exists between the defendant and claimant. However, the neighbors principle in Donoghue v. Stevenson (1932) and Anns v. Merton LBC (1978) was expanded in the case of Caparo Industries Plc v. Dickman (1990) that outlined three stages of duty of care that include foresight, proximity and fairness. The Caparo test or three-stage test offered that foreseeability is essential since the defendant must have foreseen that the claimant will be injured and proximity is essential. Accordingly, it is just, fair and reasonable to impose duty of care on the persons involved as a matter of public policy. However, courts have expanded the duty of care to include voluntary assumptions (Harpwood 2009). Test of breach of care in negligence The current test of negligence is based on three-stage test that aims at satisfying courts that that the defendant owed a duty of duty, the breach of care occurred and the claimant suffered legally recognized harm due to the breach of care. The breach of care is often the standard of care that is measured by the ‘reasonable man test’. According to this objective test, the defendant must meet the standard of a reasonable person as demonstrated in the case of Vaughan v. Menlove (1837) 3 Bing N.C 467, the court held that the defendant was negligence since his haystack had caught fire due to poor ventilation even though in his best judgment he could not foresee the risk of fire (Bermingham & Brennan 2012). Accordingly, if the defendant is a professional, he is expected the take a standard of care that is expected of a reasonable person within the certain profession. According to the case of Willsher v. Essex Area Health Authority (1988) 1 AC 1074, the house of Lords held that a junior doctor was liable for injuries suffered by a premature birth since junior doctor must hold the same standard of care as a qualified doctor. However, the House of Lords later formulated a proof for negligence in the Bolam test in cases where a divided opinion exists as to the appropriate course of action in certain situations. The case of Bolam v. Friern Hospital management committee (1957) 1 WLR 583, the case entailed divided opinion on whether a doctor breached a duty of care in not administering relaxant drugs to a patient suffering from serious injuries (Strong & Williams2011). The court held that the doctor was not liable of not administering the relaxant drug and formulated the bolam test that asserts that a professional is not guilty of negligence if he or she has acted according to practice accepted as proper by the responsible body of skilled medical men in the practice (Marson 2013). Accordingly, minors are not liable for breach of the same standard of care as adults as evidenced by the case of Mullin v. Richards (1998) 1 WLR 1304 where the court of appeal ruled that the standard of care of a 15 year old is not similar to that of a reasonable man and thus was not guilty of breaching a duty of care (Statsky 1982). The plaintiff must demonstrate that the actions of the defendant or omission led to the injuries or damages suffered. Generally, but-for’ causation is essential in proving negligence since it is essential for the courts to be satisfied that the plaintiff would not have suffered damages or incurred injuries were it not for the omissions or actions of the defendant. The plaintiff must have caused damages within the scope he or she would have foreseen since the defendant’s actions or omissions must be the proximate cause of the plaintiff’s damages (Anthony 2002). Causation is an important aspect in providing negligence since there must be a factual link between the breach of duty of care and the harm incurred by the plaintiff. The harm must not be too insignificant and must not be natural since intervening factors will break the chain of causation. According to the ‘thin-skull’rule, in the case of Smith v. Leech Brain & Co Ltd (1962), the court held that the risk must be foreseeable and not remote. Lastly, the plaintiff must have suffered a legally recognized harm in terms of personal injuries or damages to property. The injuries or damages incurred can either be physical, financial, mental and psychological and courts must be able to ascertain the extent of the harm suffered from the breach of duty of care by the defendant (Statsky1982). Factors considered by courts In assessing if the defendant has breached the duty of care, the courts will look at the capacity of the defendant in ensuring duty of care, the acts of the claimant such as the consent and costs or difficulties in taking precautionary measures. The courts will also look at the extent of the potential risks o the claimant and seriousness of the injury to the claimant. Other factors that are relevant include the state of knowledge of the defendant, the industrial standards and if the defendant has any expert knowledge (Anthony 2002). The courts will consider the capacity of the defendant in establishing the standard of care. Children have a lower standard of care than that of reasonable man since childhood is a normal stage of humanity that individuals undergo thus it is unfair to hold children with equivalent duty of care as adults (Caldwell 2008). Anthony (2002) asserts that the courts will look at the precautionary measures that were undertaken by the defendant in trying to mitigate the risk of harm to the plaintiff. The courts must be ascertain the probability that harm would occur if care was not undertaken and possible seriousness of the harm to the plaintiff. The defendant ought to have reasonably foreseen the risk of harm and taken precautionary measures. Accordingly, the courts will consider the seriousness of injury or damages suffered by the plaintiff since ‘not insignificant risk’ might not have been reasonably foreseen by the defendant (Caldwell 2008). The court will also consider the special skills, the knowledge of the defendant and industrial standards in establishing negligence in cases where professionals are required to perform specialised tasks. the test for negligence or carelessness is whether the professional performed the duties or tasks as a reasonably competent professional in the field (Turner 2013). Conclusion The test of establishing breach of duty in negligence provides that the harm must be objectively and reasonably foreseeable and that the defendant must have a duty of care to prevent the harm. The defendant must also have breached the duty of care by not exercising the standard of care that is reasonable in those circumstances and the plaintiff must have suffered damages or injury due to the breach of the duty of care. Reference list: Anthony, G. 2002. UK public law and European law: the dynamics of legal integration. Oxford: Oxford University Press. Bermingham, V & Brennan. 2012. Tort law. Oxford: Oxford university Press. Caldwell, R. 2008. Guide to the law of contract. Brighton: Emerald. Harpwood, M. 2009. Modern tort law. London: Routledge. Marson, J. 2013. Business law. Oxford: Oxford University Press. Statsky, W.P. 1982. Torts: personal injury litigation. London: Pearson. Strong, S.I & Williams, L. 2011. Complete tort law: text, cases and materials. Oxford: Oxford University Press. Turner, C. 2013. Unlocking torts. London: Routledge. Read More